Minister for Immigration & Multicultural Affairs v Djalal

[1998] FCA 1575

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – appeal from a decision remitting an application for refugee status to the RRT for further consideration according to law.

EVIDENCE – whether there was evidence before the Tribunal as to whether or not an arrest warrant had been issued against the respondent in Indonesia – whether Tribunal had concluded that an arrest warrant had not been issued against the respondent – whether Tribunal could draw an inference that an arrest warrant had been issued.

Migration Act 1958 (Cth), s 476(1)

Jones v Dunkel (1959) 101 CLR 298, applied
Bhuiyan v Minister for Immigration and Multicultural Affairs (Wilcox J, 14 October 1998, unreported), distinguished

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v HAMDI DJALAL

NG 653 of 1998

MOORE, MANSFIELD & EMMETT JJ
SYDNEY
10 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 653  of  1998

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	HAMDI DJALAL Respondent
JUDGES:	MOORE, MANSFIELD AND EMMETT JJ
DATE OF ORDER:	10 DECEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The orders of 10 June 1998 be set aside and there be substituted an order that the application for review be dismissed with costs.

1. The respondent pay the appellant’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 653  of  1998

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	HAMDI DJALAL Respondent

JUDGES:	MOORE, MANSFIELD AND EMMETT JJ
DATE:	10 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:  The respondent is a national of Indonesia.  He entered Australia on 25 December 1987.  His wife and children followed on 21 October 1989.  On 8 August 1994 the respondent applied for refugee status.  The respondent’s wife and children were also included in the application.  On 28 September 1994, the appellant (“the Minister”) notified the respondent that the new statutory provisions commencing on 1 September 1994 had the effect that his application was to be taken to be an application for a Protection Visa (866).  The Minister notified the respondent at the same time that his application had been refused because he had been found not to be a refugee.  The respondent’s wife and children were also refused Protection Visas.

The respondent, his wife and children applied to the Refugee Review Tribunal (“the Tribunal”) on 7 October 1994 for review of those decisions.  On 19 June 1997, the Tribunal affirmed the decisions not to grant Protection Visas to the respondent and the members of his family.  On 18 July 1997, the respondent filed an application to the Federal Court of Australia for an order of review of the decision to refuse him a Protection Visa.  On 10 June 1998, O’Connor J ordered that the decision of the Tribunal of 19 June 1997 be set aside and that the matter be remitted to the Tribunal for further consideration according to law.  From that decision, the Minister has appealed to the Full Court.

The relevant grounds relied on by the respondent in his application for review to this Court were expressed in the respondent’s amended application as follows:

2.The Tribunal erred in that having rejected the evidence of the witnesses Muchlis Bachsinar (referred to as “Basinar” in the Tribunal decision) it thereby held that the said arrest warrant was not a genuine document which finding was not in law open to the Tribunal on the materials before it which error constitutes a ground of review within sections 476(1)(e) and 476(4)(a) and (b) of the Act.

3.The Tribunal ought to have directed itself that by rejecting the evidence of the witness Muchlis Bachsinar it was entitled to hold that the evidence of that witness did not support the authenticity of the warrant but this did not entitle the Tribunal to find that the warrant was not genuine, which direction the tribunal failed to make thereby causing it to err by failing to properly consider whether the aforesaid warrant was an authentic on the materials before it, this being a ground of review within sections 476(1)(e) and 476(4)(a) and (b) of the Act.

In the course of argument, counsel for the respondent confirmed that those grounds were intended to refer to both section 476(1)(e) and section 476(1)(g). Further, the respondent sought leave during argument to amend those grounds by including a reference to section 476(1)(a) and section 420(2)(b). That leave was refused, because amendment at that stage would have delayed the hearing. The Minister indicated that if leave to amend were granted, an adjournment may be necessary. In any event, there would have been no utility in an amendment because, having regard to the facts of the case, there were very limited prospects of success.

In order to make the grounds of review comprehensible, it is necessary to say something about the evidence and findings as recorded in the reasons for decision of the Tribunal. 

The respondent’s application for refugee status was dated 4 August 1994.  The basis of the respondent’s claim to refugee status was that he was unable to benefit from Indonesia’s protection because he was “involved in Islamic movement against Government and Tanjung Priok case”.  He said that he was afraid that he would be arrested and interrogated with torture and intimidation without being brought to justice.  He said that that would happen because of his religion and political opinion.  He stated that “one of our leaders” came to Australia after being released from prison and warned the respondent that it was not safe for him to go back to Indonesia because the authorities are still looking for the people who were allegedly involved in the Tanjung Priok case who are still “on the run”.

That application was the respondent’s third application for refugee status.  His first application, made in April 1991, was rejected.  His second application, made in April 1994, was also rejected.  In his first application, the respondent described the Tanjung Priok incident as follows:

During this time there was initial uprising by the religious and political interests in Tanjungperoik, Rawabadak, Jakarta.

Fortunately I was not in attendance at the Mosque at the time at which the horrifying incidents occurred.  The Government troops began shooting at the people who were on their way to the District Authority to protest against the actions of an army sergeant at the Rawabadak Mosque.  I had left earlier and was not involved in the massacre by the troops, but I was told about it later.  More than one hundred people were brutally killed, none of them were armed.  It was not until the next day that I was to find out that my friend Amir Biki was also killed and I learned that the Authorities were looking for all of his close associates and friends and being one of his close friends I became very scared and fled to Surabaya in hiding and left my family in Jakarta with my cousin.

The Tanjung Priok incident occurred in September 1984.  The respondent stated in his application that he returned to Jakarta in January 1985.

In its reasons of 19 June 1997, the Tribunal stated that it had serious and significant credibility concerns in relation to the respondent’s claims because of numerous inconsistencies in his evidence and his inability to provide reasonable explanations of such inconsistencies.  For that reason, the Tribunal rejected the respondent’s claims that if he returned to Indonesia he would face a real chance of serious harm arising from any real or imputed political opinion, religion, membership of any particular social group, his race or nationality. The argument before O’Connor J and in the Full Court focussed on the conclusions reached by the Tribunal concerning a claim by the respondent that an arrest warrant had been issued against him in Indonesia in 1989.  It is necessary, therefore, to examine the findings made by the Tribunal in that regard.

In connection with his second application in April 1994, the respondent submitted a copy of what purports to be a document dated 27 December 1989 which has been described as an arrest warrant.  A translation of the document shows that the document names the respondent and contains the following:

After careful examination prior to the issuing of this certificate it is apparent that the said person is involved in subversive activity and several case of criminal acts against the security of the legal state as well as associated with a prohibited public movement.

………………………………………

This certificate is issued to whom it concerns as required (for) Arrest and interrogation (for) Jurisdiction of Court.

The document in question was not mentioned in the first application.  In his second application, the respondent claimed that although he had earlier believed the Indonesian authorities had no interest in him because he was not a high profile activist, he was concerned, after he received a copy of that document, that the authorities were more interested in him and that he would suffer persecution if he returned to Indonesia.  At a hearing before the Tribunal, the respondent told the Tribunal that he first received a copy of the document at the end of 1992.  He said that a friend, Mr Muchlis Bachsinar, brought it back to Australia after he visited Indonesia.

Mr Bachsinar also gave evidence before the Tribunal.  The Tribunal found that Mr Bachsinar, who was the president of an Islamic society in Australia for two years, had lived in Australia since 1988 and first met the respondent at a mosque in Australia in 1989.  He claimed that when he held the position as president of the Islamic society he planned to help a number of Indonesians who were in Australia, some of whom were against the Indonesian government and some who were not.  Mr Bachsinar told the Tribunal he decided to return to Indonesia to gather information as to whether any of those people were still being sought by the Indonesian authorities.  He told the Tribunal that he had a relative in Indonesia who had connections with the military tribunal who could obtain information.  He also told the Tribunal that he obtained information for people who were in a state of indecision about their futures and claimed that he had tried to get information in order to allow them to return to Indonesia.

Specifically, Mr Bachsinar told the Tribunal that during a trip to Indonesia between 30 August 1991 and 18 September 1991 he obtained documents and information, including a copy of the so called arrest warrant, from a person to whom he was distantly related through marriage and who held an intelligence position.  Mr Bachsinar told the Tribunal that all arrest warrants were kept in police records in the Department of Justice and claimed that his relative could get copies of the documents.  He told the Tribunal that he gave the copy of the so called arrest warrant to the respondent two weeks after he returned to Australia in 1991.  When asked whether it was easy to obtain false documents of such type, Mr Bachsinar replied that it was quite difficult and that he did not believe his relative would have provided false documentation.

The respondent told the Tribunal that he did not obtain the document until the end of 1992.  The Tribunal then recalled Mr Bachsinar who said that he did not personally hand the document to the respondent but left it in the Islamic organisation office for collection a short time after he returned from Indonesia.  He said that although he met the respondent after his return to Australia, he did not speak personally or directly to the respondent.  The respondent was unable to explain why he did not obtain the document until November 1992, other than by suggesting that a split in the religious community may have contributed to the difficulty.

The Tribunal did not accept that the respondent’s role in Islamic religious activities in Indonesia was of such significance that it led him to be of any ongoing interest to the authorities or that there was any real chance he would be of “significant adverse interest to the authorities” should he now return to Indonesia.  The Tribunal accepted that there was a real chance that the respondent was wanted for questioning in the period immediately after the Tanjung Priok incident as a result of his attendance at various religious meetings and prayer meetings in the early 1980s.  However, by January 1985 when the respondent returned to his home in Jakarta, the arrests in relation to that incident had stopped.  The Tribunal accepted as evidence of a lack of interest by the authorities in the respondent, his ability to continue to live and work in Jakarta without significant difficulties from authorities for his involvement in Islamic matters.  The Tribunal was satisfied that had the respondent been of “any significant adverse interest to the authorities, to the degree that an arrest warrant would be issued against him in 1989”, he would not have been able to remain living and working in Indonesia without significant difficulties from the authorities.

The Tribunal then went on to deal with the so called arrest warrant as follows:

In relation to the arrest warrant, the Tribunal resoundingly rejects that it is a copy of a genuine document.  Although it is accepted that the [respondent] did not [scilicet] have a copy of the arrest warrant at the time he lodged his first primary application… the Tribunal does not accept the [respondent’s] evidence that he did not obtain the document until November 1992.  The Tribunal found the evidence of Mr Basinar in relation to his motivation to obtain such documents for the [respondent] and others to be of no assistance to the [respondent’s] case.  Mr Basinar was evasive in his evidence and answers to the Tribunal’s questions concerning whether or not he specifically returned to Indonesia to obtain documents to support various members of his Islamic community in their applications for protection visas…  although the Tribunal accepts Mr Basinar may have brought the documents back to Australia from Indonesia, the Tribunal found Mr Basinar inconsistent in relation to his explanations as to how the document was made available.

…the Tribunal does not accept the [respondent’s] claims he only obtained a copy of the document or knew of its existence in November 1992.  The Tribunal accepts that the [respondent] may have been uncertain about whether to return to Indonesia, and thus did not immediately submit the document, but does not accept that this gives rise to any well-founded fear of persecution.  Given the adverse findings relating to the credibility of the [respondent] and unsatisfactory aspects of Mr Basinar’s evidence, the Tribunal places little weight on the document purporting to be an arrest warrant.

The Tribunal concluded said that it was “satisfied that at the time he left the country [the respondent] was of no significant adverse interest to the authorities”.  That conclusion was based on a number of specific findings which the Tribunal made concerning the activities of the respondent.  The Tribunal then went on to say as follows:

Further, based on the above findings, despite continued interest by Indonesian authorities in those associated with the Tanjung Priok incident and other suspected advocates of an Islamic state following later incidents between the authorities and those accused of being Islamic fundamentalists opposed to the doctrine of Pancasila, the Tribunal resoundingly rejects [the respondent’s] claims he was suspected of being in this category by authorities and had an arrest warrant issued for him.  On the basis of the credible evidence presented, the Tribunal is satisfied the chance the [respondent] has of being placed in that category now or in the reasonably foreseeable future due to his activities in Indonesia is remote and insubstantial.

The respondent contended that the Tribunal made a finding that no arrest warrant had in fact been issued for the respondent.  It was said that that finding is apparent from the passage just cited where the Tribunal said that it rejected the respondent’s claim that he “had an arrest warrant issued for him”.  The essential thrust of the respondent’s complaint was that that finding was not open to the Tribunal on the evidence which was before it.

The respondent relied on propositions of the general law said to be derived from the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298. Thus, one does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say, provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed – per Kitto J at 305. The failure of a witness to give evidence cannot be used to fill gaps or to convert suspicion into inference - per Menzies J at 313.

O’Connor J dealt with the issue before her fairly briefly and it is convenient to set out the entirety of her Honour’s reasoning in relation to the conclusion that the decision of the Tribunal should be set aside.  Her Honour said:

In this case the reasons for decision read as a whole showed that the decision maker has formed an adverse view as to the credibility of the witnesses that were called before it to give oral evidence.  However, the decision is not merely discursive and difficult to follow, there are parts of the decision which appear on an ordinary reading to be contradictory.  At page 29 of the decision the RRT says:

“In relation to the arrest warrant, the Tribunal resoundingly rejects that it is a copy of a genuine document.”

Yet at page 30 the RRT says:

“Given the adverse findings relating to the credibility of the [respondent] and unsatisfactory aspect of Mr Basinar’s evidence, the Tribunal places little weight on the document purporting to be an arrest warrant.”

The first of these findings could only be construed as a finding as to the genuineness of the document.  The second seems to consider that the document is able to be considered but places little weight upon it.  If one concludes that this finding as to the genuineness of the document was made then, in my view, this amounts to an error of law.  The only evidence available to the RRT as to the genuineness of the document was provided by Mr Basinar and the RRT, as it was able to do, had rejected this man’s evidence as to the source of the document.  The RRT made no finding as to how this document came into existence and the inference that it was not genuine could not be drawn on the material that was available to the RRT at the time the decision was made.

Although the [Minister] says that no finding that the document was a forgery was made, in my view there is no other interpretation that can be put on the finding reproduced above in this decision.  It is true, as has been submitted by the [Minister], that this finding need not have been made by the decision maker in order to come to the conclusions that it did in relation to the Convention reasons.  However the RRT member did choose to make this finding and based a substantial part of its reasoning for rejection of the [respondent’s] application upon it.

Thus, her Honour did not articulate the particular ground in section 476(1) of the Migration Act which she had found was made out by the respondent.  Although her Honour referred to “an error of law” she made no reference to section 476(1)(e). On the other hand, the statement that “inferences could not be drawn on the material that was available” rather suggests reliance upon section 476(1)(g).  In any event, it is clear that her Honour did not base the decision on the ground in section 476(1)(a) since that ground was not raised in the application.

O’Connor J referred to as what she characterised as “contradictory statements” in the reasons for decision of the Tribunal.  However, as her Honour acknowledged, the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed – Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Reading together the Tribunal’s two statements concerning the document in question, it is clear enough that the Tribunal gave the document no weight.

Counsel for the respondent accepted that, but for the document in question, there was no evidence before the Tribunal as to whether or not an arrest warrant had in fact been issued in Indonesia.  Counsel for the respondent accepted that, on the material before the Tribunal, and in the light of the findings on credibility made by the Tribunal concerning Mr Bachsinar, the Tribunal could not draw an inference that an arrest warrant had in fact been issued.  Further, the respondent conceded on the hearing of the appeal that if the Tribunal could properly reach a conclusion that it was not satisfied that any warrant in those terms had in fact been issued for the arrest of the respondent, the application for review should have been dismissed and the appeal should be upheld.

Much of the argument on behalf of the respondent centred around the statement contained in the reasons of the Tribunal that the Tribunal “resoundingly rejects that it is a copy of a genuine document”.  Ultimately, however, the respondent accepted that whether the document in question was a copy of a genuine document was not really to the point.  The essential question was whether the Tribunal had concluded that no arrest warrant naming the respondent had been issued in fact and whether that conclusion was open to the Tribunal on the evidence before it.

In Bhuiyan v Minister for Immigration and Multicultural Affairs (Wilcox J, 14 October 1998, unreported) consideration was given to a somewhat similar question concerning the weight to be given to a foreign document.  In that case, the applicant for refugee status had produced a document which he said had been sent to him in Australia by his father in Bangladesh.  The document was in the form of a letter apparently addressed to the officer in charge of a police station in Bangladesh.  In its reasons for decision in that case, the Tribunal indicated that it placed no weight on the document and did not accept the document as evidence that the applicant was wanted by the authorities.

The Tribunal was criticised for refusing to place weight on the document because, it was said, the Tribunal had no basis for assuming the document was bogus.  It was said that the Tribunal should have been prepared to attribute at least some weight to it.  Wilcox J had difficulty with that argument.  His Honour considered that the Tribunal first had to decide whether or not to accept the document was genuine.  If it did so, certain consequences might follow.  On the other hand, if the Tribunal concluded that it could not be satisfied the document was genuine, it would be illogical to give it any weight at all.

Wilcox J referred to the possibility that the Tribunal might make further enquiries about the genuineness of the document but concluded that the Tribunal should not be criticised for failing to make such an enquiry in the circumstances of that case.  His Honour did not see how the Tribunal could have carried the matter any further in the circumstances and considered that it was understandable that the Tribunal was not prepared to accept the document at its face value.

His Honour, however, then went on to say:

If the matter had been left at that, there would have been room for criticism of the Tribunal; it is one thing to be unable to conclude a document is genuine, it is another thing to act on the basis it is false.  In a situation like this a Tribunal of fact has to ask the question:  what if I am wrong in rejecting the authenticity of the document? (at page 4)

In that case the Tribunal concluded that, even if the document in question was genuine, it would not have altered the Tribunal’s conclusion that the applicant was not entitled to refugee status.  In the present case the Tribunal did not consider whether the position would be different if it had been satisfied that the document was genuine.

As indicated above, the Tribunal’s conclusion that an arrest warrant had not been issued is based on its finding that the respondent was able to continue to live and work in Jakarta, after his return in January 1985, without significant difficulties from authorities.  The Tribunal concluded from that fact that the authorities lacked interest in him.  The Tribunal considered that if the authorities had no significant adverse interest in the respondent, it was unlikely that an arrest warrant would have been issued against him.  That reasoning is unconnected with the so called arrest warrant, although it is a reason for concluding that the document was not a copy of a genuine document.

The reasoning process adopted by the Tribunal was open to it on the material that was before it.  The principle in Jones v Dunkel would not stand in the way of that reasoning.  That principle would, if anything, work against the respondent.  If no weight is to be given to the document in question, there was simply no evidence before the Tribunal from which a conclusion could be drawn that an arrest warrant had been issued.  It would be pure conjecture as to whether an arrest warrant had issued.  Once the document in question is rejected as having any evidentiary value, the only conclusion open to the Tribunal would be was that there was no arrest warrant.  When one adds to that consideration, the fact that the respondent lived and worked in Jakarta without significant difficulty, the conclusion reached by the Tribunal is one which was open on the evidence before it.

In those circumstances the respondent’s complaint concerning the Tribunal’s conclusion is ill founded. It is therefore not necessary to deal with the difficulties that the respondent would have encountered in bringing his complaint within one of the grounds set out in section 476(1) of the Migration Act.

It follows from the above that her Honour erred in setting aside the decision of the Tribunal.  Accordingly, the appeal should be allowed.  In lieu of the orders made by her Honour, there should be an order that the application for review be dismissed with costs.  The respondent should pay the Minister’s cost of the appeal.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            10 December 1998

Counsel for the Appellant:	A. Robertson SC with V.A. Hartstein
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	R.B. Wilson
Solicitor for the Respondent:	Janice Vu & Associates
Date of Hearing:	4 November 1998
Date of Judgment:	10 December 1998